The Higher Education (Freedom of Speech) Act 2023: What Does it Mean?

The Higher Education (Freedom of Speech) Act ("the Act") puts new duties on universities and colleges and to help protect freedom of speech for staff members, students and also visiting speakers on university campuses.  

Labour's decision to revive the Act

The Act was introduced in 2023 under the previous Conservative government. At the time, Conservative MPs and the Government believed the Act was necessary to counter growing intolerance in universities where academics or speakers could find themselves forced out or no-platformed over their views. Whilst it was designed to protect university staff from so-called "cancel culture", at the time of its initial drafting, Labour MPs were concerned the Act would serve to protect hate speech and fuel misinformation. In particular, there was cross-party criticism of the proposed statutory tort in clause 4 of the Act which would have allowed individuals to bring claims to court if they suffered loss as a result of their free speech rights being unlawfully restricted (this will now be scrapped so universities are not vulnerable to higher costs). 

During the summer of 2024, the Education Secretary Bridget Phillipson announced that the Act would be paused to consider options including its potential repeal due to concerns about its impact on vulnerable groups. The decision to shelve the act was subsequently challenged by many academics and high-profile campaigners, including the Free Speech Union (FSU) who had been granted permission to appeal Ms Phillipson's decision to suspend the Act with a judicial review which was set to take place at the end of January 2025.

Following this backlash, in January the Government confirmed it is committed to implementing an amended version of the Act. Ms Phillipson said: ''Academic freedom and free speech are fundamental to our world-leading universities and this government is committed to protecting them. These changes protect free speech but avoid implementing excessive and burdensome provisions which could have exposed struggling universities to disproportionate costs''. 

How does the Act define freedom of speech? 

The Act is designed to strengthen freedom of speech and academic freedom. Freedom of speech means the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the European Convention on Human Rights as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images. The exercise of this right, as it carries duties and responsibilities, does not include unlawful speech or conduct which infringes on the rights and freedoms of others (such as harassment, incitement to discrimination or harm to reputation). 

Academic freedom is defined in the Act as the freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.  As the Office for Students (OfS) put it, the core mission of universities and colleges is the pursuit of knowledge and the principles of free speech and academic freedom are fundamental to this purpose.

How to ensure compliance?

Higher education providers will need to take (reasonably practicable) steps to ensure lawful freedom of speech. This will include ensuring that the use of any premises of the university is not denied to any individual or body due to their ideas, opinions or policies. 

In order to secure freedom of speech within the law for staff, students and visiting speakers, the governing body will be prohibited from entering into a non-disclosure agreement in relation to a relevant complaint made. This includes complaints made by staff, members, or visiting speakers related to sexual misconduct, bullying or harassment by any person. Student unions are no longer covered by the Act.

Further, all universities will be required to have a robust code of practice established setting out values relating to freedom of speech which will be enforced by the OfS, an explanation of how those values uphold freedom of speech, the criteria to be used in making decisions about whether to allow the use of premises, and the procedures to be followed by staff, students and any students' unions when organising meetings and activities.   

A new complaints scheme

The Act will establish a new complaints scheme which will be operated by the OfS the independent regulator of higher education in England. The OfS will have the power to investigate complaints over breaches of freedom of speech from academics, external speakers and members of universities. Penalties include fines or suspension of registration by the OfS. The power given to OfS is to consider complaints at their discretion, rather than an obligation to consider every complaint. 

Further, the complaints can be about providers or their ‘constituent institutions’ (e.g. colleges within a collegiate university), but not students’ unions. In its amended form, it also does not give complainants the powers to seek compensation.

The main duties on universities and constituent institutions of the Higher Education (Freedom of Speech) Act 2023 will be brought into force and commence shortly. OfS has already used its regulatory powers following the conclusion of its freedom of speech investigation in the Kathleen Stock case - on 26 March, it was reported that the OfS levied a record-breaking £585,000 fine against the University of Sussex for failure to uphold freedom of speech and academic freedom principles set out in the regulatory framework.

This article was authored by: Jo Sanders (Partner), Chloe Flascher (Associate) and Madji Diop (Trainee Solicitor)